High Court OKs Moving Padilla to Jail

In a small victory for the Bush administration, the Supreme Court cleared the way Wednesday for erstwhile “enemy combatant” Jose Padilla to be released from a military brig and moved to a jail in Miami, where he faces a criminal trial.

It was the latest turn in the saga of the Bronx-born Muslim who was once accused of plotting to detonate a radioactive “dirty bomb.” The high court’s brief and unanimous order ends a spat with the conservative U.S. appeals court in Virginia which, for reasons of its own, had blocked the transfer of Padilla to the criminal court.

Wednesday’s order allows the government to prosecute Padilla on scaled-down charges of training with terrorists. It also probably spares the administration from a defeat before the high court on whether the president can imprison Americans as enemy combatants.

For about 3 1/2 years, the government held Padilla in a military brig in South Carolina. He had been arrested at Chicago’s O’Hare International Airport in May 2002 after returning from Pakistan, and then-Atty. Gen. John Ashcroft announced from Moscow that agents had broken up a plot to set off a radioactive bomb in the United States.

The details of this accusation have remained sketchy.

However, Padilla’s case became a test of the president’s power in the war on terrorism. He was labeled an enemy combatant, but no charges were filed against him. His lawyers and his family were not permitted to speak with him.

President Bush and his lawyers argued that as commander in chief, he could order Padilla, a U.S., citizen, to be locked up indefinitely.

Most civil libertarians said the president had no such unchecked power. But Padilla’s lawyers had a hard time obtaining a ruling on his constitutional challenge, mostly because the administration’s lawyers insisted no such court hearing was called for.

The administration suffered a defeat two years ago when the Supreme Court, in a related case, ruled the government could not hold a U.S.-born enemy combatant without giving him a hearing.

The defendant, Yaser Esam Hamdi, was born in Louisiana, grew up in Saudi Arabia and was captured fighting for the Taliban in Afghanistan.

Shortly afterward, the government released Hamdi and sent him back to Saudi Arabia.Padilla’s lawyers were confident they would prevail if they could get their client’s case before the high court. But to win, they first had to get beyond the conservative appeals court in Virginia.

In a few cases, the Bush administration has moved suspected terrorists, such as Padilla, to military brigs in Virginia or South Carolina, knowing their legal appeals would be funneled through the U.S. 4th Circuit Court of Appeals, based in Richmond.

In September, the appeals court ruled for the president and said he had the authority to hold Padilla as an enemy combatant. Its opinion was written by Judge J. Michael Luttig, who was a contender for a Supreme Court seat.

But in November the Bush administration reversed course and brought a criminal indictment against Padilla. It did not mention the “dirty bomber” accusations. Instead, Padilla was accused of conspiring with terrorists abroad.

Administration lawyers said the criminal charge meant the Supreme Court had no reason to rule on the president’s power to hold enemy combatants. The government asked the court to release Padilla from the brig and send him to Miami for trial.

Luttig and the 4th Circuit balked and refused to allow Padilla to be moved from the military brig. He said the administration’s reversal undercut its credibility and suggested it was trying to avoid a possible defeat of its enemy combatant policy at the hands of the high court.

After having fought to keep Padilla in military custody, the Justice Department urged the Supreme Court last week to free him from military custody.

The 4th Circuit’s action “defies law and logic,” U.S. Solicitor Gen. Paul D. Clement said in his emergency appeal. It was sent to Chief Justice John G. Roberts Jr., who has oversight over the 4th Circuit.

Since both the prosecution and the defense want Padilla tried in a criminal court, the judges have no authority to hold on to him, Clement argued.

For its part, the Supreme Court refused to be drawn into the dispute. It briefly recited the facts and said, “The government’s application presented to the chief justice and referred by him to the court is granted.”

Padilla’s appeal challenging the 4th Circuit’s original ruling is still before the high court, and the justices are due to consider it Jan. 13.

But Wednesday’s order increases the likelihood they will dismiss the case as moot.